The opinion of the court was delivered by: LEIBELL
The limitation and exoneration proceeding (A 144-151) was instituted in this Southern District by the owners and charterers of the tug Mary T. Tracy. Two actions were brought by damage claimants: one in this Southern District (A 142-72) by the Long Island Lighting Company, as owner of the cargo of coal aboard the coal barge Red Star No. 50, against the Tracy Towing Line, Inc., the Pennsylvania Railroad Company and the tugs Mary T. Tracy and the Baltimore; and the other in the Eastern District (later removed to this Southern District) (A 163-155) by the Red Star Towing and Transportation Company, as owner of the coal barge Red Star No. 50, and by Henry Devanny, the barge captain and the captain's wife, Edna Devanny, against the Pennsylvania Railroad Company and the tug Baltimore and against the Tracy Towing line, Inc. and the tug Mary T. Tracy. The two actions and the limitation proceeding were consolidated for trial.
In the limitation proceeding the Berwind-White Coal Mining Company, as owner of the coal barge Eureka No. 29 filed a claim for damage to the barge; the Thermal Fuel Corporation, as owner of the cargo of coal on the coal boat Jackson, filed a claim for the loss of the cargo; and Thomas J. Howard, as the owner of the coal boat Jackson, filed a claim for the loss of the Jackson. The total of the claims of the libelants and the damage claimants is about 2 1/2 times the value of the tug Mary T. Tracy.
The evidence at the trial established that the flotilla of seven barges broke loose from the bulkhead at 34th Street and the East River because of the extra strain which the addition of the Jackson to the tier of six boats put upon the lines of the inmost barge, the Eureka No. 29, causing the lines to part. The master of the Mary T. Tracy was negligent in not directing the deckhand of the tug to examine the lines by which the Eureka No. 29 was moored to the bulkhead. The deckhand of the Mary T. Tracy did not go beyond the coal barge Cape Kelly, the fourth barge out from the bulkhead. If he looked at the lines of the Eureka No. 29, which were black from use, it was from a point about 70 or 80 feet off. He could not properly examine the lines from that distance, even though there were flood lights on the wharf for the unloading of the Eureka No. 29. The deckhand of the tug Mary T. Tracy was negligent in his examination of the lines.
It must have been apparent to the captain of the tug Mary T. Tracy and to the deckhand, that all the barges in the tier were fully loaded, except the Eureka No. 29 which was being unloaded. When a barge is tied up to a wharf the barge is not required to put out enough lines to hold securely any other barges which may later tie up to his barge. The No. 225, D.C., 272 F. 130. It is the duty of the tug captain, who ties up a barge to barges already moored, to make sure that the lines to the wharf are secure and sufficient to hold the full tier of barges with his barge added, and to make sure that the lines connecting the various barges in the tier are sufficient to hold the respective barges in their place in the tier, so that none of the barges will break loose due to the additional strain of the barge he is adding to the tier. Pennsylvania R. Co. v. McWilliams Towing Line, 2 Cir., 277 F. 798; The Venus, D.C., 6 F.Supp. 950; Clearly Bros. v. Port Reading R. Co., 2 Cir., 29 F.2d 495; The Bartle Daly, 2 Cir., 45 F.2d 605.
The owners of the tug Mary T. Tracy argue that the lines of the Eureka No. 29 (Exs. 1, 2, 3, 4 and 5) and the photographs thereof (Exs. 1A, 2A, 4A and 5A) show that certain of the Eureka's lines were cut with a sharp instrument, and that the lines did not part under the extra strain of the barge Jackson and its cargo of coal. The evidence does not prove that the lines were cut and the probabilities are strongly against any such inference. Five sections of line were produced in Court at the trial; two short pieces alleged to have been found on a horned cleat on the bulkhead near 34th Street on the morning of January 23d, 1946, and three long pieces of line found on the Eureka No. 29 after she was towed back from the 96th Street rack to the 34th Street bulkhead. Captain DeMars, an expert called by the damage claimants, testified that the appearance of the lines indicated that they had parted under strain. The expert produced by the owners of the Tracy was of the opinion that in several places the lines appeared to have been cut. Counsel for the Tracy contends that the lines of the Eureka No. 29 were cut at the steel horned cleat on the bulkhead. The position of the cleat on the concrete bulkhead, lodged between the ends of two heavy timber stringers (see photos, Exs. RS 6 and 6A), was such that a person who wanted to sabotage the tier of barges by cutting the shore end of some of the lines would have to stand in a very awkward position to swing an ax at the lines. If a line was taut, he ran the risk of being struck by the line as it whirled loose when cut. Further, the strain on the line would prevent him from cutting the one line in two places before the line pulled loose. Yet that, in effect, is the untenable contention of petitioner's counsel- that each of the two small pieces of line (Exs. 1 and 2) found on the wharf cleat, was cut out of a Eureka line running around the wharf cleat. Both ends of the Eureka lines were attached to cleats on the barge.
There were flood lights on the bulkhead to enable those engaged in the unloading operation to do their work at night. The captain of the barge Eureka No. 29 went home about 5 P.M. The unloading operation on the Eureka No. 29 started between 5 and 6 P.M. and was still in progress when the tier of barges broke loose about 10:15 P.M. During the unloading operation there were present the crane operator, who operated a bucket crane attached to a tractor, the drivers of the coal trucks, usually three in number, and the coal trimmer on the barge. The coal trimmer was not in any position to see what happened ashore; the crane operator and the truck drivers were.
The crane operator, Mr. Hazel, was a witness at the trial. The crane had a clam-shaped bucket which could hold half a ton. He described how the crane was operated, under portable acetelene lights. He saw no one at the lines of the Eureka No. 29. The down stream lines from the bow end of the Eureka No. 29 were the first to part. Then the tier swung around with the flood upstream tide. Next the upstream lines from the stern end of the Eureka No. 29 parted. The lines of the Eureka No. 29 parted shortly after the barge Jackson was tied up to the tier. The crane operator tried to hold the Eureka with the aid of the crane bucket. The coal trimmer got a line and threw it to the bulkhead, but that line also parted. The coal trimmer was still aboard the Eureka No. 29 as the tier of barges drifted out and upstream.
The crane operator hurried by truck to a dock at 47th Street and tried to help the flotilla but was unsuccessful. The coal trimmer managed to get ashore when the tier drifted towards the docks at 47th and 48th Streets. The crane operator and the boat trimmer testified concerning their efforts to save their barge. All that they did completely refutes any suggestion that either they or any of the truck drivers could have been involved in any act of sabotage. And it is hardly likely that any stranger would have run the risk of sure detection, if he had attempted to cut the lines of the Eureka while she was being unloaded. The probabilities are a safe guide. The Black Diamond, 2 Cir., 273 F. 811.
I have considered also the possibility that the crane bucket cut the lines. The testimony of the Tracy expert (Mr. Hatch) was that the lines had been cut by a sharp instrument. He could not say if a clam shell bucket could do that. The crane bucket's edge was about an inch thick. The cutting is alleged to have been done with a sharp instrument near the cleat on the bulkhead. The cleat was so protected by the wooden stringers at each end of the horn that it would be difficult for the crane bucket to strike the lines on the cleat. It is not at all likely that the bucket could have struck the lines at the edge of the concrete bulkhead with sufficient force and in such a manner as to cut each of the two lines in two places, four cuts in all. The crane operator testified that he did not hit the lines with the bucket. Two barge captains testified that the lines parted with a report, such as is heard when lines break under a strain. The Tracy's contention that the lines of the Eureka were cut is contrary to weight of the credible evidence and contrary to the physical facts themselves. The Tracy Towing Line, Inc.'s petition for exoneration from liability is accordingly denied.
As to the issues raised by the petition for limitation of liability, and the answers thereto. I have concluded that the petition should be granted. The damage claimants argue that the record of the trial shows (1) a continuous practice on the part of Davis, the mate in charge of the tug Mary T. Tracy, of omitting to examine the shore moorings of barges at bulkheads to which he moored additional vessels, and (2) that the alleged negligent practice of the pilot was within the privity and knowledge of Collins and others, who managed the business of the charterers. Tracy Towing Line, Inc.
Davis had worked on vessels since 1932 and had been on tugs in New York Harbor about seven years. He had been employed by the Tracy Towing Line since May 1942 and held a license since June 1943. His deckhands were Cowin and Morrison, very good deckhands. The tug Mary T. Tracy was in excellent condition.
Davis described his practice in landing a barge in the vicinity of 34th Street, when there is no room at the bulkhead, as follows: he would 'take the shortest tier or what looks to be the safest spot to land it up, if there is no other dock in the vicinity' and tie it up to the tier that he thought would be the safest- and 'try not to hang a loaded boat in a light tier and pick out a tier that looks like it is secured safely', one 'that has the lines out that look the best'. In order to find out which tier was the best, Davis would send a deckhand over to see what the lines looked like, to see if they would hold the weight of the boat. The deckhand would come back and describe the lines, and if he said he did not think it is safe, then Davis would either look at the line himself or go somewhere else. The deckhand reported how many lines were out, what size they were, whether they were new lines or worn, or had a cut. He did not do that all the time but the majority of the times. If the tier of barges looked as if it had a lot of strain on it, Davis would send a man over to investigate. From the pilot house he usually could see the lines on the tier. He had a search light. If he saw a line that looked like a small line, he would send a man to see how many lines the boat had out and their size. He relied principally on the deckhand's judgment. He could not go over and examine the lines himself. The deckhand would give the lines a quick glance as he walked past the lines. He would go as far into the tier as the man in the pilot house told him to go. Most of the time the pilot can see all the lines from the pilot house. If four boats are in a tier, an examination of each boat at both ends would take about 15 minutes. In January 1946, they were busy. It was the aftermath of the war and they had to keep going as fast as they could. As to his instructions concerning his duties aboard his tug, Davis said: 'You get those when you get your license- it is the examination and you learn how to tie up boats when you are a deckhand before you get your license. While serving as a deckhand you work under licensed masters.' No one in the Tracy office gave him any instructions as to his duties- neither Mr. Collins nor Mr. Richards nor Mr. Clemente.
Cowin, the deckhand, testified that he had been a deckhand on the Mary T. Tracy for eight years up to January 1946. He was never told to go and examine every line on all the inside boats. It might take an hour. To examine the lines on three boats would take 20 or 25 minutes. From a distance of four or five boats away he could not see a line in the inside barge even with a tug's search light on it at night. Mr.Collins who hired him gave him no instructions as to his duties, but the tug captain did.
Mr. Collins occasionally rode the tugs but his principal work was that of a dispatcher. He was not a licensed man. At Mr. Lucas, an engineer employed by Tracy Towing Line, Inc., made regular trips on the Tracy tugs. He was licensed as an engineer and made the trips for the purpose of seeing that the Tracy tugs were properly maintained. It has been affirmatively shown by the petitioners that the alleged 'continued practice of negligence' on the part of Captain Davis and the crew of the tug Mary T. Tracy (assuming that there was any continued practice of negligence on their part) was without the privity or knowledge of the officers and managers of the Tracy Towing Line, Inc. That Davis and his deckhand were negligent under the facts shown in this case has been established; but from that it does not follow that what Davis and his deckhand did in landing barges at tiers as a general practice, would constitute negligence under all circumstances or in a majority of instances. His practice would probably meet the needs ...